The groundbreaking war crimes trial in The Hague of former Ivory Coast president Laurent Gbagbo has rekindled a bitter row across Africa over the international justice system.
With Gbagbo the first ex-head of state to be hauled into the dock at the world’s only permanent war crimes court on Thursday, some in Africa are lashing out at the International Criminal Court (ICC) for allegedly pursuing Africans alone.
The continent, they argue, instead should have its own court.
“It leaves me a bit puzzled to see former African leaders dragged before the ICC,” Babacar Ba, who heads a judicial forum in Senegal, told AFP.
“It’s as if we Africans are incompetent to decide the law or lack the resources to judge our own people,” added Ba.
Instead of trying Gbagbo at the ICC, “we could’ve set up Extraordinary African Chambers as we did for Hissene Habre,”, he said, referring to the special court set up in Dakar by the African Union to try the former Chadian leader.
Delayed for years, the first phase of the Habre trial for atrocities wrapped up in December, setting a historic precedent as up until then African leaders had been tried in international courts for such abuse.
The Habre trial has set a precedent in the struggle to end impunity as it sees a former African head of state forced to account for his actions in another African nation’s court under the principle of “universal competence”.
UN Secretary-General Ban Ki-moon this month said the Habre trial, along with several cases before the ICC, showed “the surge in accountability mechanisms.”
“The world is witnessing a sea change in ending impunity for atrocious crimes,” Ban added in his New Year message.
– Row over Sudan’s Bashir –
At stake at the Habre trial that opened last year was Africa’s “capacity to judge its own children so others don’t do it in its stead”, said Marcel Mendy, spokesman for the Extraordinary African Chambers.
But Babacar Ba said it was key for African states to follow Senegal’s lead and adopt the principle of “universal competence” to enable them to hold such trials.
Set up in 2002 as the last resort to try war criminals and perpetrators of genocide never tried at home, the ICC has opened probes involving eight nations, all of them African: Kenya, Ivory Coast, Libya, Sudan, Democratic Republic of Congo, Central African Republic, Uganda and Mali.
African leaders have accused it of acting as the judicial arm of foreign powers.
The creation of the ICC “was strongly backed by Africa”, which now considers it “no longer a tribunal for all,” said Ethiopian Foreign Minister Tedros Adhamon Ghebreyesus, speaking on behalf of the African Union in November.
The ICC prosecutor, herself an African, Fatou Bensouda of Gambia, disagrees. “All the cases we have, with the exception of Kenya, Sudan and Libya, were initiated on the request of African states,” she told AFP in November.
But the case of Sudanese President Omar al-Bashir, who has been wanted by the ICC since 2009 for war crimes, crimes against humanity and genocide, repeatedly reignites the row, with the African Union publicly opposing his arrest several times on the grounds of his immunity as head of state.
At an AU summit in Johannesburg in June 2015, a South African court ordered the government to arrest him — but authorities allowed him to make a rapid exit from the country, triggering a domestic row.
The legal battle to force the government to arrest Bashir was launched by the Southern Africa Litigation Centre (SALC), a non-profit lawyers’ group.
“It is important for South Africa and other signatories to the Rome Statute to support the ICC,” Angela Mudukuti of the SALC told AFP ahead of Gbagbo’s trial. “The ICC is the only permanent international justice mechanism mandated to handle egregious crimes.
“Most importantly,” she added, “victims need justice.
“Suspected perpetrators of these crimes need to understand that the long of arm of the law will catch up with them.”